Identity CrisisJudgment and the Hollow Legal

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University of Wollongong

Research Online

Faculty of Law - Papers (Archive) Faculty of Law, Humanities and the Arts

2007

Identity Crisis: Judgment and the Hollow LegalSubject

Richard MohrUniversity of Wollongong, [email protected]

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Publication Detailsis article was originally published as Mohr, R, Identity Crisis: Judgment and the Hollow Legal Subject, Law Text Culture, 11, 2007,106 - 128.
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Identity Crisis: Judgment and the Hollow Legal Subject

Abstract

modern legal subject. ere is something missing, a gap in the middle of that subjectivity, which clouds our

judgment. is split had its origin in the Enlightenment, its rst eect being the separation of knowing fromdoing. Our experience of the world could only be mediated through self-conscious sense data and thought,

without our being in direct contact with the satisfaction of our needs or the consequences of our actions. isnew conception of subjectivity has become an impediment to judgment, since spliing the actor from thespectator, and the judge from the life of the community, results in a denial of the capacity to interpret facts inthe light of experience.

Disciplines

Law

Publication Details

is article was originally published as Mohr, R, Identity Crisis: Judgment and the Hollow Legal Subject, LawText Culture, 11, 2007, 106 - 128.

is journal article is available at Research Online:hp://ro.uow.edu.au/lawpapers/44
http://ro.uow.edu.au/lawpapers/44http://ro.uow.edu.au/lawpapers/44


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Identity crisis:

Judgment and the hollow legal subject

Richard Mohr

A modern malaise

In this article I will be suggesting that there is a problem with the

modern legal subject. There is something missing, a gap in the middle

of that subjectivity, which clouds our judgment. This split had its origin

in the Enlightenment, its first effect being the separation of knowing

from doing. Our experience of the world could only be mediated

through self-conscious sense data and thought, without our being in

direct contact with the satisfaction of our needs or the consequences of

our actions. This new conception of subjectivity has become an

impediment to judgment, since splitting the actor from the spectator,

and the judge from the life of the community, results in a denial of the

capacity to interpret facts in the light of experience.

These broad claims are in urgent need of illustration; justification

will take a little longer. Let me begin by illustrating my concerns with

a well known contemporary instance. This is an account of a discussion

between a journalist, Ron Suskind, and a White House aide, presumed

by Walker to have been Karl Rove.

The aide said that guys like me were in what we call the reality-based

community, which he defined as people who believe that solutions emerge

from your judicious study of discernible reality. I nodded and murmured

something about enlightenment principles and empiricism. He cut me off.

Thats not the way the world works anymore, he continued. Were an


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Identity crisis: judgment and the hollow legal subject

empire now and when we act we create our own reality. And while youre

studying that reality judiciously as you will well act again, creating

other new realities, which you can study too, and thats how things will

sort out. Were historys actors and you, all of you, will be left to just study

what we do (Suskind in Walker 2006).

The context of this exchange, the White House under George W.

Bush, flags the themes of responsibility for actions and allocation of

liability or blame. These were illustrated by aNew Yorker cover at the

time of the 2006 Congressional elections which highlighted the carnage

in Iraq, showing Bush in a ruined antique shop, broken china

everywhere, protesting his blamelessness to an appalled proprietor. In

Suskinds account, the aide has split action off from a prior

understanding of reality to promote a triumphalist decisionism. One

can study reality judiciously, the aide says, whereas action takes place

ahead of judgment. I am also intrigued by Suskinds own murmurings

about enlightenment principles. Is this really an account of enlightened

empiricism versus a post-enlightenment imperial will-to-power? I will

show that this split between actors and spectators, doers and knowers,

has deep roots in modern soil which can be traced to origins in the

Enlightenment. Earlier conceptions of judgment, which involved thecapacity to act wisely, were overtaken by notions of taste and

discernment: to judge was to pass judgment upon some external reality.

This introduced a split which fundamentally compromises our capacity

to gauge the wisdom of our actions in the light of desire, context and

experience. Investigating the roots of this problem entails a critique of

the conception of the legal subject.

Yes, the journalists, commentators and academics can make

disinterested empirical studies, but what is to guide our judgment and

our actions in a complex political or ethical environment? The same

White House administration, represented by Colin Powell at the United

Nations Security Council on 5 February 2003, used an unmediatedempiricism as the basis of its argument for the invasion of Iraq: My

colleagues, every statement I make today is backed up by sources,

solid sources. These are not assertions. What we are giving you are

facts and conclusions based on solid intelligence (Powell in Latour

2005: 18).1


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Latour highlights Powells denigration of argument in the face of

the undisputable power of facts, presumed to speak for themselves.

To find an alternative to this worn out clich, Latour (2005: 19) looks

to Aristotles rhetoric and its proofs appropriate to things contingent

and uncertain such as human actions and their consequences (Aristotle

1960: 5).

We will need to dig down to this ancient layer in the archeology of

knowledge, but not just yet. First it is necessary to address the terms ofthis inquiry into the legal subject, whose responsibilities are more

relevant to everyday life than are those of the White House. Each of

us, president or citizen, must have ways of working out the right course

of action. The question underlying this inquiry is: How can the legal

subject decide the right way to act and to face responsibilities? That

cannot be done by neglecting either experience or persuasive argument,

yet these are the elements missing from each of the above contemporary

examples. In this article I hope to identify the shortcomings of a legal

subject cut off from sound judgment, to explore the origins of this gap,

and to try to grasp some alternative conceptions which could reunite

knowing and doing, responsibility and action, experience and judgment.

The legal subject

The very notion of the legal subject presents some difficulties which

must be excavated before moving on to a wider analysis. I address this

problem by inquiring, first, into some narrow conceptions of the legal

subject as a pure creature of law. Then, through an analysis of the

nature of subjectivity and the subject more broadly, I will show that

the very notion of the subject derives from legal conceptions of our

domination by authority. That notion of the subject was overtaken, in

Enlightenment thought, by a conception of the thinking subject, the

ego cogito. I draw on Agambens (2001) critique of this subject detachedfrom experience to rediscover a thick notion of subjectivity, further

elaborated in recent work by Ricoeur (2004) which attributes

responsibility and recognition to subjects.


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Legal subjects appearing in the thin world of modern jurisprudence

can be dismissed as unreal fictions, artificial semantic products ... of

classical jurisprudence (Teubner 1989: 743). In a similar vein Goodrich

(1986: 222-3) sees the legal subject as having only one biography,

determined by a series of definitive moments. To this specifically legal

and one-dimensional subject, he contrasts the subject of modernity

whose multifaceted subjectivity is interwoven with history, whose

individuality is always involved with collectivity. By using the term

legal subject in a sense related to the fictitious concept of the person2,

Kelsen (1967: 168) ties it to the artificial nature of a legal fiction which

can as easily apply to a corporation as to a man (if less certainly to a

woman, according to a contemporary Australian legal dictionary3).

I propose a broader view of the legal subject, not least because the

very notion of legal subjectivity is deeply bound up with our notions

of responsibility and judgment, as will be seen more clearly below.

Kerruish (1996: 96) helps us along this path by identifying the active

element in subjectivity, if not specifically legal subjectivity, as a

corrective to the bare abstraction of the legal person from the living

being, interchangeable with any other legal person, lacking individuality

or will. While we may note that Kerruishs legal person echoes

Goodrichs determinate legal subject, she reserves the word subject

itself for a more active role.

In the modern usage of the term subject, which Williams traces to

classical German philosophy, the subject, far from being cast under

the domination of a sovereign (in the root sense of the word), takes on

the properties of the subject of the verb, the acting I. This shift in

meaning from subordination to self-initiated action is at the heart of

the profound difficulty Williams finds in the term (Williams 1983:

308-12).

Another way of analysing the legal subject is by asking what the

legal adds to, or subtracts from the subject itself. Let us begin by

accepting that the subject, deriving from the notion of subjection, can

also be understood in modernity as a self activating and self conscious

being. Such a subject has a capacity for self actualisation which may


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be inhibited or enhanced by the law. Kelsen notes the laws ability to

set a limit to any self determination by limiting the rights the subject

can claim, even in civil (private) law, through the regulation of property

and the limits to contractual freedom (Kelsen 1967: 170-1). Benjamin

(1986: 283) also identified the limiting effect of law, noting the

tendency of modern law to divest the individual, at least as a legal

subject, of all violence, even that directed only to natural ends. Because

law is founded or preserved through violence, the state resists the

capacity of the legal subjects to wage war or go on strike. In

recognising this capacity of the legal subject not just to resist the law

but even to found new law through insurrection or revolution,

Benjamin (1986: 284ff) places huge (proto-)legal power in the hands

of the subject, whose legal limitations are then mediated by forces within

and beyond the power of the state.

Ricoeur offers a more positive assessment of the capacity of the

legal subject: indeed, the invention of the legal subject ... imports the

idea of mutual recognition into our conceptual history (Ricoeur 2004:

270). I will travel further down the path of recognition with Ricoeur4

later in this article, but for now I simply note that his legal subject is

the one who is responsible for actions, to whom blame or praise may

be allocated, who may be held to account, through punishment or

liability(Ricoeur 2004: 173-4). Far from being a passive subject of

legal domination, or a mere legal fiction, here we find a legal subject

upon which can be built our very conceptions of recognition and

responsibility.

To sum up my understanding of the legal subject, then, let me clarify

the stretched and sometimes antagonistic meanings of these words.

The subject was originally cast under the domination of an authority,

from which it was but a short step to being under the authority of law.

As the notion of the subject and subjectivity took on new meanings in

opposition to objects, so to be a subject was to be an active, thinkingagent. Yet the concept of the legal subject survived from earlier notions

of subjection, even as it took on new capacities as the one responsible

for actions. Subjectivity may now be seen as an active principle that

can be limited by law and at the same time held accountable for those


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actions which may be imputed to it. This conception brings with it a

far deeper conception of what it is to be a legal subject than the thin

definition that confines itself to jurisprudence. I accept, and will

elucidate, Ricoeurs contention that legal concepts including the legal

subject flowed into modern practices of knowledge5 in the notion of

recognition.

The new subject of the Enlightenment

The shift from the old legal subject to the subject of modernity took

place from the 17th to the 18th century. The invention of modern

subjectivity can be seen to bring with it a new self-consciousness side

by side with a limitation of our responsibility for actions. This is a

limitation imported from the new conception of the thinking subject. It

can be traced in the passage of western philosophy from Descartes to

Kant, whereby the self-conscious subject, the ego cogito, became split

off from its physical self. This was announced by Descartes separation

of esprit from res extensa, of the mind as subject from the body as a

thing that simply took up space like other objects. I referred at the

outset to the broader implications which flowed from this split, limitingthe capacity for judgment, responsibility and experience. In following

sections I will deal with these topics in turn, considering their expression

by Kant, their implications for the legal subject, and a critique which

seeks a new foundation for legal identity.

I have referred in passing to practices of knowledge: constellations

or patterns of thinking and acting which are maintained by disciplines,

institutions and the habitus of our daily lives. These patterns may be

found in numerous cultural manifestations, the most stable and easily

cited including philosophy, law and literature. While philosophy

elaborates a tradition of thought, and is the form in which we may

most easily discuss or dispute such matters, literature (like art in general)can operate as a vanguard, outlining new directions whose form may

only later be analysed in more detail. Those outlines, sketchy and

evocative as they are, speak to us in a different way from the formalised

and consistent structures of the philosophers. Law offers an insight


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into some of the deep structures connecting thought and action. It has

coexisted with and perhaps outlived religion as a formalised unifying

component of our ethical and practical social life.

The method I follow here, then, tacks between literary, philosophical

and legal analysis. My first illustration drew on accounts of public life

in the White House in the early 21st century. I now propose a literary

illustration, dating from four centuries earlier, which precedes the

philosophical elaboration of the problem.

Consciousness and experience in Don Quixote

Don Quixote, the old subject of consciousness, was enchanted and can

only make (fare) experience without ever having it. By his side, Sancho

Panza is the old subject of experience, who can have experience without

ever doing it (senza mai farla) (Agamben 2001: 18).

These few tantalising lines from Agamben identify the split between

experience and consciousness which appear in the first modern work

of literature (Foucault 1994: 48), introducing the Baroques break with

all previous systems of representation. These two literary charactersfrom the dawn of modernity prefigure the new trope of the subject

split off from experience, of receptivity and spontaneity those two

sources of human knowledge, originally differentiated in philosophy

by Kant (Ricoeur 2004: 96). Publishing the first book ofDon Quixote

in 1605, Cervantes preceded by a generation Descartes cogito ergo

sum and Gracins identification of taste as the foundation of judgment.

I will elaborate on these elements after taking a short ride with Don

Quixote and Sancho Panza.

Don Quixote gains all his understanding of the world through

reading romances about knights and chivalry, to the extent that his

brain is addled, his judgment gone.6 He is so bedazzled by these stories

that he barely feels the pain of his beatings and he lives his life according

to the laws of chivalry. Bereft of needs or wants, he adopts Dulcinea as

his lady without ever seriously desiring her. He judges with no

knowledge of circumstances or of consequences. Having heard the


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cries of the servant Andrs who is being beaten by his master in the

wood, Don Quixote concludes that they belong to some gentleman or

lady in need who requires my assistance and help, and thanks heaven

for giving him the opportunity to fulfil his calling as a knight. Don

Quixote orders the man to stop beating Andrs, and pay him all the

servant says he owes him. Believing that this decision will be respected,

merely because he has uttered it, Don Quixote leaves the two. We are

not surprised to discover later in the story that Andrs was beaten even

more severely as a result of Don Quixotes intervention (Cervantes

2003b: 35-7, 264-5). Quixote typifies pure agency which is incapable

of learning from experience. In reply to Don Quixote saying, of one of

their misadventures, let it be a lesson for the future, Sancho replies,

Your grace will learn the lesson ... the same way Im a Turk (Cervantes

2003b: 173).

The squire Sancho, on the other hand, feels pain without reflecting

on the injustice: it doesnt hurt at all to think about whether the beating

they gave me was an offence or not, unlike the pain of the beating ...

(Cervantes 2003b: 107). Later, after another beating, Don Quixote again

muses on the causes of Sanchos pain.

The cause of this pain no doubt must be ... that since the staff they used to

beat you was long and tall, it hit the length of your back, which is where

the parts that pain you are located; if it had hit more of you, more of you

would be in pain.

By God, said Sancho, your grace has cleared up a great doubt, and said

it so nicely, too! Lord save us! Was the cause of my pain so hidden that you

had to tell me I hurt where the staff hit me? If my ankles hurt, there might

be a reason to try and guess why, but guessing that I hurt where I was

beaten isnt much of a guess (Cervantes 2003b: 643).

Sancho differs from Don Quixote in desiring food and other material

things like money. Over a huge rabbit pie and an excellent wine, Sanchoand the squire of another knight7 marvel at the rules and knightly

laws and opinions of their masters, which confine them to eating

hazelnuts, dried fruits, thistles and roots.8


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Sancho is no fool when it comes to judgment. His capacities are

illustrated in several passages, the first in the context I have just

mentioned, eating pie and drinking wine.9 Sanchos tastes are gluttonous

but certain: discerning that the wine the other squire provided comes

from Ciudad Real, he reacts to the others Bravo! What a winetaster!

with this explanation:

You cant fool me! ... You shouldnt think it was beyond me to know about

this wine. Does it surprise you, Seor Squire, that I have so great andnatural an instinct for knowing wines that if I just smell one I know where

it comes from, its lineage, its taste, its age, and how it will change, and

everything else that has anything to do with it? But its no wonder, because

in my family, on my fathers side, were the two best winetasters that La

Mancha had in many years ... (Cervantes 2003b: 537).

His judgment of the wine is as incontrovertible in its certainty and

its corporeality as it is irrational.

These vignettes fromDon Quixote introduce the gaps that I want to

explore in the modern legal subject. Don Quixote judges on the basis

of the romances and fables contained in his books. Reality must conform

to his preconceptions, so that things appearing as they are and not ashe imagines them can only be enchanted. Bodily experience is a trigger

for reflection rather than a source of pleasure, pain or satisfaction.

Because he is unable to relate his experiences to his thoughts, or his

judgments to their consequences, his ineptitude is unchecked and his

actions reckless. Sancho, Agambens old subject of experience, knows

things in their visceral immediacy. Totally lacking self-consciousness,

he sees no point in reflection, but is in tune with his pain, his desires

and their objects.

Judgment

The diverse subjects of Don Quixote and Sancho approach judgment

in two entirely different senses in the above discussion. Don Quixote

judges the dispute between Andrs and his master by reference to his

own preconceptions of knightly virtue, rather than by the relevant

events. He perceives Andrs as a gentleman rather than a servant, and


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his master as a knight. All the notions he applies come from his

romances, the books which his friends subsequently have walled up in

his library to avoid any further damage. Judgment in this sense is derived

from abstract and elaborate systems and may be called a priori

judgment, since it is applied without regard to consequences any more

than to circumstances.

At the other extreme is Sanchos judgment of the wine, which is

entirely free of any reflection or preconception. It is visceral andcorporeal, following immediately on Sanchos ingestion of the wine.

This may appear to be judgment of an odd sort, since it is based purely

on taste, in the narrow sense. In todays world we might associate such

judgment with wine tastings and the prizes and consumer tips associated

with them. Yet taste itself formed the basis of a long tradition of

theorising about judgment, which began with Gracin (1601-58),

another Spanish writer of the early 17th century (Gadamer 1989: 35).

At the basis of this conception of judgment was the idea of

discrimination, of separating what pleases from what disgusts, the

beautiful from the ugly.

The two approaches to judgment, of Don Quixote and Sancho, are

so different that they seem to be entirely diverse activities. One seeks

to apply some abstract principles to a situation that is beyond

comprehension by the senses, the other responds with pleasure and

discrimination to an immediate sensation. One is directed to righting

wrongs and flows from an idealistic calling and desire for the good

(mis buenos deseos 55), while the other satisfies appetites and elicits

vulgar oaths in its appreciation.10 Yet these two activities came to be

called by the same name, and their two strands were elaborated into

theories of judgment, most famously by Kant.

That such diverse actions can be brought together requires some

analysis. Taking the reductive path typical of the Enlightenment, Kant

built his theory of judgment in general on the immediacy of judgments

of pleasure and displeasure. The difficulty of this position is that

personal perceptions of taste may not be universal or communicable.

Such immediate reactions are essentially indisputable, so that if I dont

like oysters it will not be possible for an oyster lover to convince me


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how good they are. There is, for Kant, no language for a communal

debate over matters of personal taste.

Kants reductive individualism led him to overlook an older notion

of the relation of taste to ethics. Gracin, no doubt familiar with Don

Quixote, had revived the idea that taste should be cultivated and

educated within a humanist tradition owing much to Greek philosophy.

Based in Aristotles practical reason of appetites and desires (to which

I return below), Greek ethics ... is in a profound and comprehensivesense an ethics of good taste (Gadamer 1989: 40). This lends itself to

development as we mature and learn wisdom. Here again we find

Sancho to be the old subject of experience, with his innate and

inherited sense of taste. His unself-conscious judgment is not tainted

by that reflexive consciousness of modernity which, by the time of

Kant was established at the heart of judgment. After Kant, judgment is

based in transcendent justification of universal aesthetics no less than

of reason.

Kant saw the need for universal agreement in judgment so that,

The judgment of taste requires the agreement of everyone, and he

who describes anything as beautiful claims that everyone ought to give

his approval to the object in question and also describe it as beautiful

(Kant 1951: 19). Kant recognises the difficulty presented by various

assessments in matters of taste and he later notes that we make claims

for universality of judgment just as if it were objective (Kant 1951:

32). He attempts to overcome the gap between the individuality of

taste and the universality required of judgment by introducing the notion

of taste as a kind of common sense, a sensus communis (40). He

builds up the commonality of this sense by means of a set of theoretical

propositions or rules for thinking. Two of these formal rules are entirely

individualistic: to think for oneself, and always to think consistently.

It is only through the principle of enlarged thought, to put ourselves

in thought in the place of everyone else (40), that we can move outsidethe confines of our individual and personal tastes and thought processes.

Yet even this movement towards a community or social collectivity is

to be achieved formally and by working outwards from the mind of the

judging individual.


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This theoretical and formal means of working from the immediacy

of perception and thought to the universality of a common sense makes

a complete break with an older Roman tradition of the sensus communis

compatible with the socialising and educative role of Aristotelian ethics

(Gadamer 1989: 33). For Kant, deprived of any social conception of

habits or categories of thought,11 judgment must work upwards from

our immediate perceptions to find a common principle or rule under

which it can be placed. For judgment to be determinant in Kants terms,

one must give priority to the objectivity of the original experience and

then one seeks the appropriate rule under which to place the singular

experience (Ricoeur 2000: 95).

That which Cervantes parodied as the enchantment of outdated

romances ushers in the modern era of the thinking subject, the ego

cogito, the esprit split off from the res extensa, the mind from the body

(Agamben 2001, Descartes 1965). Kant systematised the ethics and

epistemology inherent in this world view in his three critiques, of

pure reason, of practical reason, and of judgment. Kants conception

of practical reason recalls Don Quixote, lost in books, applying universal

laws supersensuous and in abstracto to a sensuous world that

swirls around him. The world of action is only empirical and can only

belong to experience (Kant quoted Benhabib 1996: 187). 12 It is

Sanchos world, or the world of Andrs beaten by his master. Benhabib

points out that this lands human actions in the same empirical world as

natural events, thus depriving us of an opportunity to understand them

with reference to reasons (Benhabib 1996: 188).

Here we have taken a leap from the personal immediacy of Sanchos

experience and sense of taste to the abstract rules of Don Quixote. For

rational disputation and determination, we must have a theoretical

and practical use of reason (Gadamer 1989: 40), yet to make a judgment

we must have the immediate experience of taste. Kant elevated the

axiom of non-contradiction to the status of his highest ethical principle,while we step outside ourselves and our own thought processes only in

order to place ourselves in the position of others. This suggests to Arendt

that Kants general (or enlarged) standpoint was merely the standpoint

of the spectator, in which she sees a basis for the seeming contradiction


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between his almost boundless admiration for the French Revolution

and his equally boundless opposition to any revolutionary undertaking

on the part of the French citizens (Arendt 1982: 44).

Kant elaborated the distinction between the engaged actor and the

judging spectator (Arendt 1982: 48) by reference to aesthetic judgment

in distinguishing between the taste of the judge and the genius of the

artist. The latter produces art, just as the revolutionary acts on the

political stage. The former judges the acts of the latter, finding thempleasing or displeasing but, having taste rather than genius, the judge

as spectator can never act. This brings us back to the ethic of the Bush

White House, where actors create a reality that can only be observed

judiciously as you will by commentators, journalists or citizens.

I hope by now I have succeeded in showing the links between the

Enlightenment critique of judgment found in its highest form in Kant

and the ethic of the White House aide, assumed by Suskind to oppose

enlightenment principles and empiricism. The difficulty for Suskind

is that while he may have found an adequate basis for empirical

judgment of truth in the Enlightenment, the nexus between perception

and action is too readily reduced to the contradiction between taste and

genius, the spectator and the actor. He has not found a basis for judging

actions within the political sphere. Worse still, when triumphal

imperialism sets itself above the need to judge the prudence, morality

or even the legality of its actions, and acts merely to create a new reality,

that reality itself becomes a terrifying space dominated by the will to

power.

Responsibility for actions

The legal subject must be capable of acting and of judging actions,

must be prudent for the future and responsible for the past. She or he

must have experience and must learn from it. That must be experience

that takes account of the way the world is, not, like Don Quixotes,

dismissing as enchanted anything that does not jibe with the romances

of the opinions, laws and orders we found in books, nor, like that of the

White House, turning its back on the circumstances in which it finds

itself in order to create its own reality.


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Nor does Sancho provide an alternative model for a legal subject.

However satisfying his judgment may be to the appetites, he does not

(unlike Don Quixote) have projects. He cannot decide how to act in

order to achieve any particular outcome, because he simply reacts to

those stimuli that are presented to him. As Agamben noted, he has

experiences without ever doing (or making) them. As the old subject

of experience, Sancho represents a way of being in the world that is

about to be superseded by the reflective, self-conscious subject of

modernity. That subject, as seen in Kant, is well suited to judging events

as a spectator but, being split between judgment and action, theoretical

and practical consciousness, it is lacking a sense of responsibility.

Having identified responsibility as a crucial element to be

rediscovered for modernity, Ricoeur looks back to the ancient Greek

epics and tragedies in search of a recognition of self as a recognition

of responsibility which predates the modern reflexive consciousness

of self involved in this recognition (Ricoeur 2004: 149).

The Greek heroes may lack the modern self-consciousness of

reflection, yet they are recognised by their actions in numerous

narratives of ethics, revenge and providence. Actions, motivations and

justice are seen in ideas of responsibility for acts which are respected

and admired. The acting and suffering man recognises that he is capable

of certain accomplishments (Ricoeur 2004: 122). We may have trouble

determining whether Oedipus was fully conscious of his actions: did

he do them wilfully or was he acting out a plan of the gods? It is

enough, concludes Ricoeur of Oedipus, that this message remains: it

is the same man suffering who we recognise acting (Ricoeur 2004:

135).

Aristotle described this responsibility for the ethical decision as

being at the basis of the human capacity to develop from bare life,

which we share with animals, to the good life, lived in the polis. This is

not a life lived in the mind: the happy man lives and fares [or acts]

well; because what we have described is virtually a kind of good life or

prosperity (Aristotle 1976: I viii, 78). We make these decisions using

the sort of practical reasoning that Aristotle called phronesis or


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prudence. Aristotles practical reasoning flows from desire and intention.

It is wise to satisfy our appetites, but this wisdom comes from

knowledge, and tempers the incontinence that may lead us to eat too

much unhealthy food (Anscombe 1963: 33; Tredennick 1976). As

McDowell (1996: 109) puts it, in Aristotles conception of human

beings, rationality is integrally part of their animal nature. Just as

recognition looks outward from the body to understand others in their

physicality as well as their responsibilities, so also we reason in a body

which has desires, needs and appetites.

Experience and the body

The importance of the body and the continuity of identity are the

foundation of a profound sense of responsibility in Greek epics. Whether

they are punished by men or by the Gods, whether or not they were

fully aware of their transgressions, the heroes of these stories act and

then face the consequences of those actions. The link between

responsibility and physical identity is well illustrated in Homers telling

of Odysseuss homecoming.

Odysseus returns to his home in Ithaca disguised as an old beggar.

The disguise is very effective, as one would expect since it was the

work of the goddess Athene. Neither his son nor his wife, Penelope,

nor any of the suitors of Penelope who have taken over his house,

recognise him. The first to recognise Odysseus is his old dog, Argos,

who, having seen his master again after nearly 20 years, suddenly dies

(Homer 1980: XVII 209). The next to recognise Odysseus is the old

woman Eurycleia who had nursed him as a child, who knows him by a

scar on his thigh (XIX 239). The climax of the story follows rapidly:

Odysseus takes vengeance on the suitors, slaughtering them in the

dining hall. When he is revealed as Odysseus and reunited with the

household, a tender longing came upon him to sob and weep, becausehe knew all of them once more, knew them from the heart (XXII 276).

The centrality of the body is crucial to each of these events: Athene

changes the bodily appearance of Odysseus; Argos recognises him in

some sensual, doggy way; Eurycleia knows him by an old scar on his


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body; the bloody slaughter, while it has a deep moral resonance, is

enacted in physical struggle; and it is Odysseuss heart which is touched

at the recognition of his household. When Homer recounts Eurycleias

recognition of Odysseus there is a long digression into the events and

actions which led to his wounding in a hunting accident (XIX 237-8).

Experiences leave their marks like the scar of Odysseus. The body

takes its central place in the narrative as the subject of identity and the

predicate of experience.

What was hollowed out from Don Quixote, as from the Kantian

subject, was the capacity to have experience. It is missing because, if

we only think inside our consciousness, we are sceptical about the

knowability of the world we live in. Deprived of a social and empathetic

understanding of other people, and split off from the consequences of

our actions, the representations of things are privileged over their

external in-itself reality, since in that interior monologue we think with

representations rather than thinking real, material things.

Phenomenology was to show that our mode of representation of

the object derives from the various horizons of our own intentionality,

announced as the ruin of representation (Lvinas 1959: 115, 117).13

Despite the sense of loss conveyed by this phrase, the rediscovery of

intentionality and of desire suggests to me more hope than despair.

This is particularly so in regard to law and the legal subject. The legal

subject who reunites agency with experience acts in a world which is

responsive, in which actions are rewarded or frustrated by other people

and by material objects. The theatre of our action is no longer a shadow-

play on the walls of a cave, but one lived out in a world of material

things and shared attention.14

We cannot go backward to an age of unself-conscious innocence,

whether that of Sancho Panza or of Aristotle.15 But in following the

thread of Sanchos appetites or Aristotles desire we are led back to a

world that feeds us, frustrates us or satisfies us. Aristotles is not a

world of pure representations nor one of private and selfish greed, but

a shared social world that does not separate virtue from pleasure. He

illustrates this point by quoting an inscription from the entrance to a

temple:


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Justice is loveliest, and health is best,

But sweetest to obtain is hearts desire (Aristotle 1976: I viii 79).

McDowell takes up the challenge to found a new subjectivity on

the acceptance of the immediacy of our animal nature, together with

that Aristotelian development of ethical responsibility calledBildung

in German. McDowell sketches out this subjectivity:

An experiencing and acting subject is a living thing, with active and passive

bodily powers that are genuinely her own; she is herself embodied,

substantially present in the world that she experiences and acts on. This is

a framework for reflection that really stands a chance of making traditional

philosophy obsolete (McDowell 1996: 111).

More than a framework for mere reflection, it is also a framework

for action and responsibility, for experience and judgment. As such it

may also make the traditional legal subject obsolete. I conclude by

considering one or two practical implications that may flow from such

a revised conception of the legal subject.

Identity and interpretation

The legal subject, as established at the outset, derives from our

subjection to the authority of law. The Enlightenment and classical

German philosophy brought a new, active sense to the subject. Now

the subject is set against objects; it is the I which postulates itself as

the subject of the verb. Yet this discovery was made from inside the

reductive consciousness of the I think (therefore I am), which

brought with it a separation from the social and the material world.

The subject was liberated from daily dealings with authority at the

expense of its integration with action, responsibility and judgment. As

Agamben (2001: 26) puts it, the thinking I (io penso) was cut off from

the empirical I (io empirico), the subject of consciousness split from

the subject of experience.

While conceptions of the legal subject may retreat into legal fictions

and jurisprudential niceties, I have drawn here on a tradition which

reconfirms the responsibility of the subject within a legal context.


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Benjamin (1986: 300), that old horseman of the Apocalypse, approached

this by postulating a legal subject capable not only of conforming to

the law but even, under revolutionary conditions, of founding new law.

Ricoeur recovers a subject who interacts with a social and material

world, and not only with representations of it. By going beyond

recognition of the object represented, Ricoeur opens the possibility

of self-recognition. This reintroduces the subjects responsibility for

acting, and so places the body at the centre of agency and of identity.

I explore the practical consequences of this identity of the legal

subject first, before turning to the implications of its capacity to learn

from experience which flows from the corporeal responsibility for

action.

The legal subject must be identified in order to attribute blame,

responsibility or rights to particular people. While the Roman persona

could be exchanged depending on the role of the subject, like the

theatrical mask from which the term derives, the responsible subject

must have continuity over time. Whoever signed the contract or wielded

the knife then must be the same one who is held accountable now.

Legal administration guarantees that continuity through physical

records, like identity cards, which collect data such as height or date of

birth, as well as physical traces such as signatures16 and fingerprints.

These partial records seek to capture certain physical characteristics of

the subject. They return us to the other side of the split between

consciousness and the body, esprit and res extensa. Physical

identification relies on characteristics selected so as not to change over

time, like Odysseuss scar. To the extent that they are attributable to a

unique individual they capture one persons characteristics. When they

are also used to allocate individuals to groups or to presumably exclusive

categories, they essentialise identity as a blurred realm between the

physical and the social: male or female; black, white or Hispanic (to

use US categories); of Middle Eastern appearance (to use a descriptorpopular with the New South Wales police). These categories are derived

from the politics of sex or race in specific communities, so the salient

categories cease to be unique identifiers, instead grouping people

forensically, into categories of suspects.


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Mohr

While the scar may be a useful identifying feature, the vulnerability

of the body to changes wrought by violence or by more slow-acting

ravages of time limits its identifiability over long periods. With the

passage of time we change physically and personally while we continue

to act and experience life. Time and experience leave their marks on

our bodies, to be sure, but they also impact on our identity in a deeper

sense. In rediscovering a legal subject who integrates the mental and

the physical, the social and the material, we recognise the capacity for

change over time. Identity ceases to be a definitive category and we

are forced to recognise that todays self is not identical to yesterdays.

The key difference between the legal subject split between agency

and experience and this new legal subject is in the expanded possibility

of interpretation. We learn the consequences of our own actions and

the meaning of other peoples through experience. The legal subject of

modernity must be capable of interpreting universal rules: in this sense,

interpretation means interpreting the law. This one sided interpretation

neglects the hermeneutics of the experience of living. This is evidenced

in the denial of the experience of the judge, which legitimises only the

interpretations which flow from the invisible life, the disembodied

judge. Judges whose lives and hence experiences give them access to

alternative interpretations are denigrated and investigated, as in the

case of the Indigenous NSW Magistrate Pat OShane (Sydney Morning

Herald18 January 2007; Khalilizadeh 2007), or overturned on appeal,

as in the Canadian case ofR v S (R D) in which the first instance judge

from a minority group understood the evidence of underprivileged

young people in their own terms, giving it credence denied by the police.

Those judges are seen to be embodied in a way that the majority are

not (Nedelsky 1997).

The legal subject I imagine is the embodied legal subject, black

andwhite; victim, defendant andjudge. Judgment, as is clear in Kants

Critique of Judgment, is not the exclusive preserve of the judge. Everylegal subject needs the interpretive skills of everyday life to make

continuous ethical and legal judgments. And judges, just like other

legal subjects, need the experience of life to enable them to interpret

actions, and not just laws (Mohr 2005). We must go beyond Kantian


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judgment, however, if we are to find a way of judging which can inform

our actions, and not just our opinions as spectators. Neither judges nor

presidents are exempt from the responsibility we all share as legal

subjects, the responsibility for our actions.

Notes

1 Latours emphasis.

2 Kelsen (1967: 168) appears to use the terms interchangeably in the heading

to section 33 ofPure Theory of Law, The Legal Subject; The Person.

3 A contemporary Australian legal dictionary defines person: A separate

legal entity, recognised by the law as having rights and obligations. Even

more revealing, it goes on, See also Association; Company; Incorporation;

Incorporated association; Man; Unincorporated association. (Nygh and

Butt 1998: 334). And make no mistake about the gender-specificity of

man: at 281 it is defined as a person of the male sex.

4 The translations fromParcours de la reconnaissance and from Agambens

Infanzia e storia are my own. I cite the English translations in the reference

list, to enable readers to do their own cross referencing (with apologies forany difficulties in matching up page references), but I have not had an

opportunity to refer to them prior to publication. My reference to travelling

down the path of recognition with Ricoeur alludes to a possible translation

of his title, but not the one chosen by Pellauer.

5 I intend this phrase to refer to the ways of thought and action, including

Foucaults discipline and Bourdieus habitus, which make us who we are

through knowing and doing.

6 rematado ya su juicio (Cervantes 2003a: 38). Henceforth all page

references to Spanish quotations are to this edition. All page references to

English quotations are to Grossmans translation (Cervantes 2003b).

7 This knight and squire turned out to be neighbours from La Mancha,

but that (as they say) is another story.

8 opinin que tiene y orden que guarda ... sus opiniones y leyes

caballerescas (628).


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9 The second (in chapter 44 of the second book) shows a different side of

Sancho, when he is installed as governor and must adjudicate a number of

bizarre disputes. These judgments are essentially canny ways of getting to

justice in a roundabout way, highlighting the importance of deception and

ruse. This curiously Baroque formula would require a longer analysis which

may explore its echoes in Gracins attachment to dissimulation and ruse

(Droit 2005). Several chapters later Sancho applies a version of the law of

equity.

10 On tasting the wine Sancho exclaims, Oh hideputa, bellaco, y como escatlico! (628) (which Grossman translates as, O whoreson, you damned

rascal, but thats good! 537).

11 Durkheims later attempt to socialise Kants category of the synthetic a

priori is far from anything Kant dreamed of. Compare Taussigs critique

of this move (1992: 126ff).

12 The direct quotes are taken by Benhabib from Kants Critique of Practical

Reason.

13 Ricoeur (2004: 95) reprised Lvinas title as that of a chapter ofParcours

de la reconnaissance .

14 McDowell (1996: 35-6) notes that thinking about thinking often leads to a

sideways-on understanding of our own thinking which fails to see thecentrality of shared attention to the world.

15 Compare: I am not urging that we should try to regain Aristotles innocence.

It would be crazy to regret the idea that natural science reveals a special

kind of intelligibility, to be distinguished from the kind that is proper to

meaning. (McDowell 1996: 109).

16 Signatures, as performative expressions of commitment, have a distinct

and more wilful character than involuntary physical characteristics.

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